Citation Nr: 0844234
Decision Date: 12/23/08 Archive Date: 12/31/08
DOCKET NO. 05-00 040A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to service connection for a right knee
disorder, to include as secondary to the service-connected
patellar tendonitis, left knee.
2. Entitlement to an initial evaluation greater than 10
percent for patellar tendonitis, left knee.
3. Entitlement to an initial compensable evaluation for
calcified granuloma, right lower lung, currently evaluated as
0 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant and Appellant's Spouse
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from May 1992 to May 1998.
This matter comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a December 2004 Decision
Review Officer's (DRO) decision, by the Roanoke, Virginia,
Regional Office (RO), which granted service connection for
patellar tendonitis, left knee, and service connection for
calcified granuloma, right lower lung, each evaluated as 0
percent disabling; that decision also denied the claim of
entitlement to service connection for a right knee disorder.
The veteran perfected a timely appeal to that decision.
Subsequently, in a June 2007 decision, the DRO increased the
evaluation for patellar tendonitis in the left knee from 0
percent to 10 percent, effective July 23, 2003. As this
increased rating does not constitute a full grant of all
benefits possible, and as the veteran has not withdrawn his
claim, the issue remains pending. See AB v. Brown, 6 Vet.
App. 35 (1993).
On July 2, 2008, the veteran and his wife appeared and
offered testimony at a hearing before the undersigned Acting
Veterans Law Judge, in Washington, D.C. A transcript of that
hearing is of record. Subsequently, in August 2008, the
veteran submitted additional evidence directly to the Board,
waiving RO consideration of the evidence. 38 C.F.R.
§ 20.1304.
The issues of entitlement to service connection for a right
knee disorder, to include as secondary to the service-
connected patellar tendonitis, left knee, and to an increased
evaluation for patellar tendonitis, left knee, are REMANDED
to the RO via the Appeals Management Center (AMC) in
Washington, DC
FINDING OF FACT
The veteran's granuloma of the right lower lung is shown to
cause any pulmonary test results of 74 percent of predicted
value.
CONCLUSION OF LAW
The criteria for a 10 percent rating, but no higher, for the
veteran's service-connected calcified granuloma, right lower
lung are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2007) 38 C.F.R. §§ 3.102, 3.159, 4.97,
Diagnostic Codes 6600, 6820 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction,
the Secretary is required to inform the appellant of the
information and evidence not of record that (1) is necessary
to substantiate the claim, (2) the Secretary will seek to
obtain, if any, and (3) the appellant is expected to provide,
if any, and to request that the claimant provide any evidence
in his possession that pertains to the claim. See 38 U.S.C.A.
§ 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. §
3.159 (2007); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006).
The present case involves a "downstream" issue, as the
initial claim for service connection for calcified granuloma,
right lower lung, was granted in the December 2004 rating
decision appealed, and the current appeal arises from the
veteran's disagreement with the evaluation originally
assigned.
In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service-connection claim has been more
than substantiated-it has been proven, thereby rendering
section 5103(a) notice no longer required because the purpose
that the notice is intended to serve has been fulfilled.
Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, as the
veteran's claim for an increased initial disability rating
was appealed directly from the initial rating assigned, no
further action under section 5103(a) is required. Goodwin v.
Peake, 22 Vet. App. 128 (2008); see also Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).
II. Higher Initial Evaluation
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder. 38
U.S.C.A. § 1155. Separate diagnostic codes identify the
various disabilities. Id. Evaluation of a service-connected
disorder requires a review of the veteran's entire medical
history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2.
It is necessary to evaluate the disability from the point of
view of the veteran working or seeking work, 38 C.F.R. § 4.2,
and to resolve any reasonable doubt regarding the extent of
the disability in the veteran's favor, 38 C.F.R. § 4.3. If
there is a question as to which evaluation to apply to the
veteran's disability, the higher evaluation will be assigned
if the disability picture more nearly approximates the
criteria for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
In determining a disability evaluation, the VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons used to
support the conclusion. Schafrath v. Derwinski, 1 Vet. App.
589 (1991).
Service connection for calcified granuloma, right lower lung,
was granted in a rating decision dated in December 2004. The
disability was evaluated as noncompensable, effective in July
2003. The veteran appealed the evaluation assigned.
Service medical records reflect X-ray findings dated in May
1998 of a questionable calcified granuloma in the lower right
lung.
VA examination in October 2006 showed that the veteran has
been suffering from an incidental granuloma by X-ray finding.
It was noted that he does not have any symptoms of persistent
fever, cough with sputum, night sweats or coughing up blood;
he does not require any treatment for the respiratory
condition. There was no functional impairment resulting from
the lung condition. The veteran was described as well-
developed, well-nourished, and in no acute distress. Breath
sounds were symmetric, with no rhonchi or rales; expiratory
phase was within normal limits. Examination of the heart did
not reveal any evidence of congestive heart failure,
cardiomegaly or cor pulmonale. Examination of the
extremities revealed no ulceration, edema or stasis
dermatitis. There was no clubbing or cyanosis. The chest
X-ray showed that there was a calcified left hilar lymph node
that was sub centimeter and a possible calcified right hilar
lymph node suggestive of old healed granulomatous disease. A
pulmonary function study (PFT) revealed forced expiratory
volume (FEV1) of 3.47 or 87 percent predicted and forced
vital capacity (FVC) of 4.16 or 85 percent predicted. The
examiner noted that the post-bronchodilator test was not
performed because the pre-bronchodilator test was within
normal limits. There was no discrepancy between the PFT
findings and the clinical examination. Diffusion capacity of
carbon monoxide (DLCO) testing was not done as the PFT
results were determined to be sufficient to evaluate the
pulmonary status of the veteran. The diagnosis was
granuloma, calcified hilar lymph nodes; the examiner noted
that the veteran did not have any complications secondary to
his pulmonary disease.
At his personal hearing in July 2008, the veteran testified
that he had experienced increasing shortness of breath and
that he had been told by the person administering PFTs
associated with his yearly employment-related work physical
examinations that his lung capacity had been lessening.
Submitted in August 2008 was the result of PFTs conducted in
March 2008, March 2006, October 2003 and November 2001 show,
respectively, FVC of 82 percent predicted and FEV1 of 74
percent predicted, FEV1 of 85 percent predicted and FEV1/FVC
of 89 percent predicted, FEV1 of 83 percent predicted and
FEV1/FVC of 86 percent predicted, and FEV1 of 84 percent
predicted and FEV1/FVC of 90 percent predicted. The
interpretation was possible early obstructive pulmonary
impairment. FVC and FEV1 were normal; the examiner explained
that this finding can be due to a mild degree of small airway
disease and/or the earliest stages of emphysema.
The veteran's granuloma of the right lower lung is currently
rated as noncompensable under Diagnostic Code 6820. Under
that code, neoplasms, benign, any specified part of
respiratory system, indicated to use an appropriate
respiratory analogy. Id. In this case, an appropriate
respiratory analogy would be chronic bronchitis under
Diagnostic Code 6600.
Under Diagnostic Code 6600, a 10 percent rating requires a
FEV-1 of 71 to 80 percent predicted; or FEV1/FVC of 71 to 80
percent; or DLCO (SB) of 66 to 80 percent predicted. A 30
percent rating requires a FEV1 of 56 to 70 percent predicted;
or FEV1/FVC of 56 to 70 percent; or DLCO (SB) of 56 to 65
percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6600
(2008).
Upon review, the veteran's pulmonary test results from March
2008 show a FEV-1/FVC ratio of 74 percent. Based on this
finding, a 10 percent rating is warranted. Id. However, a
higher rating is not warranted. FEV1, FEV1/FVC readings were
not between 56 to 70 percent predicted, nor was a DLCO (SB)
reading between 56 to 65 percent predicted. 38 C.F.R. § 4.97
(2008).
Based upon the above findings, a 10 percent rating, but no
higher, is warranted for service-connected granuloma, right
lower lung, from the date of service connection. 38 C.F.R.
§ 4.97, Diagnostic Codes 6600, 6820.
The veteran is competent to report his symptoms and
complaints. See Layno v. Brown, 6 Vet. App. 465, 470 (1994).
However, he is not competent to offer a medical opinion as to
extent of his respiratory disability as he is not a medical
professional with the required expertise to do so. See
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).
The assignment of different evaluations throughout the
pendency of the veteran's appeal has been considered;
however, the medical evidence does not support staged
evaluations in the present case. See Fenderson v. West, 12
Vet. App. 119 (1999).
Application of an extraschedular evaluation under 38 C.F.R.
Section 3.321(b)(1) has been considered, but is not here
warranted, as the medical evidence does not present
exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993).
ORDER
A 10 percent rating for granuloma, right lower lobe, is
granted from July 23, 2003.
REMAND
The veteran testified before the undersigned veteran in July
2008 that his left knee condition has worsened in severity
since his last VA examination, which was in May 2007. His
wife also testified as to her observations of his left knee
symptoms.
Concerning his claimed right knee condition, the veteran
testified that he began to experience right knee problem
during active service, and that his symptoms have continued
to the present time. His wife testified that she observed
the veteran begin to experience problems with his right knee
prior to his discharge from active service and that these
difficulties continue to present.
Given the foregoing, additional VA examination should be
accorded the veteran to determine the nature and extent of
his service connected left knee disability, and the nature,
extent, and etiology of his claimed right knee condition.
See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the claim is REMANDED for the following:
1. Ensure that all identified VA and
non-VA records that are not already of
record are obtained.
Document negative responses and inform
the veteran so that he may attempt to
procure the missing records on her own.
2. Schedule the veteran for medical
examination by the appropriate medical
professional to determine the nature and
extent of his service connected left knee
disability and the nature, extent, and
etiology of his claimed right knee
condition. All indicated tests and
studies should be performed. The claims
folder, including a copy of this remand,
must be provided to the examiner in
conjunction with the examination.
The examiner is asked to offer an opinion
as to whether it is as least as likely as
not that any diagnosed right knee
disability is in any way related to the
service-connected left knee disability
or, in the alternative had its onset
during active duty or is the result of
any incident of active service.
3. After undertaking any other
development deemed essential in addition
to that specified above, readjudicate the
veteran's claims for service connection
for a right knee disorder, to include as
secondary to the service-connected
patellar tendonitis of the left knee, and
for an initial evaluation greater than 10
percent for the patellar tendonitis, left
knee, with application of all appropriate
laws and regulations and consideration of
any additional information obtained as a
result of this remand. If any decision
remains adverse to the veteran, provide
him and his representative with a
supplemental statement of the case.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
actions until he is so informed. The veteran has the right
to submit additional evidence and argument on the matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App 369
(1999). The veteran is advised that failure to appear for VA
examinations could result in the denial of his claims. 38
C.F.R. § 3.655 (2007). See Connolly v. Derwinski, 1 Vet.
App. 566, 569 (1991). The Board intimates no opinion as to
the ultimate outcome of this case.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
L.J. BAKKE-SHAW
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs